3 Answers
3

I know that my answer is horribly unsourced, but it might help somebody out there anyway. If it is 100% certain that the pregnancy will kill the mother, then an abortion would be permitted, because the mother's life takes precedence over the baby's life. (This remains true until the baby's head and/or most of its body is born, at which point it and the mother have equal rights.)

Cases where a pregnancy is dangerous for the mother but not clearly fatal must be determined by a competent Rabbi.

I believe that the Tzitz Eliezer permitted early abortions in some limited circumstances, although some other poskim disagreed with this psak.

Here's an anecdotal bit of information, for those of you familiar with the frumteens site. A young girl (13-14) posted that she was pregnant after her friend's brother basically raped her. (I don't know whether this has any bearing, but the girl's mother wanted her to abort.) Rabbi Shapiro (the head moderator of the site, who is also a Rabbi in Bayswater) posted the names and numbers of a bunch of poskim and told her to call them ASAP - if the first didn't answer she should call the next, etc. My impression is that he wanted to get her a psak that an abortion would be muttar before she passed a certain point in her pregnancy. I believe that after the girl called a posek (and presumably got a psak that it was muttar), he then told the girl that it was her decision - she could abort if she wanted to, but she didn't have to.

But please, nobody should pasken for themselves from what I say that I think that somebody else said, in a different case. For anybody who is tempted to do so, I'll point out that Rabbi Shapiro had the girl herself call a posek, and didn't just tell her himself that it was muttar.

It is especially important to consult with a competent Rabbi when it comes to these types of cases before taking any action (or inaction). An error in either direction could have devastating consequences.

The basic halacha would seem to turn on whether or not the infant is a rodef or not (after the 40 day mayim bealma limit mentioned by Rashi). Mordechai Torczyner gives a list of sources as follows
Note that the site I point to actually has links to the seforim quoted.

The "links" at that site just cross reference where else it references the same sefer on the site. They don't actually show you the relevant content of the sefer. But it is a good compilation of sources on the matter.
–
YishaiJun 6 '14 at 4:55

Abortion

אוהלות ז:ו – If a woman is having trouble giving birth and her life is in danger you can cut up the foetus and remove it limb by limb because her life comes first.

This seems to imply that abortion is אסור since only if the woman's life is in danger
can you abort the foetus.

אוהלות continued – Once the child has started coming out you can't kill it since you can't trade a life for another life.

What changes between these two stages?

:נדה ה:ג נד – The חיוב מיתה for killing a baby is only if its alive.

.ב"ק נב – if people are fighting and hit a pregnant woman and cause her to miscarriage the person who hit her has to pay (and doesn't go the עיר מקלט).

.ערכין ז – A woman who is חייב מיתת ב"ד is killed immediately, and we don't wait for her to give birth first if she's pregnant.

From these three גמראs it seems clear that abortion is not murder, however from אוהלות we see that its אסור.

There is a מחלוקת תנאים about when the foetus gets a נשמה;

:סנהדרין צא – According to ר' יהודה הנשיא it occurs immediately upon conception.

:מנחות צט – According to both ר' יוחנן and ר' אליעזר it occurs on the 40th day after conception.

רש"י מנחות – This is because before this point the foetus has no form.

Clearly we see that there is a נשמה before birth, why then is it not murder to abort?

:יד רמ"ה סנהדרין עב:, צא – Having a נשמה is different than having a נפש, you only have a נפש when you are born (this works well with the משנה in אוהלות).
ויקרא כד:יז –i"כל נפש אדם".

:רש"י, יד רמ"ה, מאירי סנהדרין עב – This פסוק excludes someone who isn't yet born.
רש"י שם – Explains the משנה in אוהלות like this (that it doesn't have a נפש and thats why its not murder).

Another reason why abortion isn't considered murder is because a baby isn't considered a בר קיימא unless its born to term (after a full pregnancy);

:סנהדרין פד – Brings down an apparent סתירה between פסוקים: in שמות כא:יב it says "מכה איש ומת" while in במדבר לה:ל it says "כל מכה נפש" (is it נפש or איש). The גמרא answers that this teaches that you are only חייב if you kill an איש who is a נפש, meaning a בר קיימא.

Another reason why abortion isn't considered murder is because עובר ירך אמו, that a foetus is considered a limb of the mother (see .ב"ק עח., תוספות ב"ק מז., תוספות סנהדרין ס). Only once the baby is out of the womb is it considered an independent entity.

If abortion isn't considered murder what could be the problem?

תוספות נדה מד. ד"ה איהו – Uses the לשון of "אע"ג דמותר להרגו".

This תוספות is the foundation for being מקל in certain cases. Some אחרונים like the ציץ אליעזר and R' Ben-Zion Uzziel are מקל based on this תוספות as we will see.

Many פוסקים, like R' Moshe Feinstein and R' Yehudah Unterman were מחמר for abortion based on the following;

רמבם הל' רוצח א:ט – There is a מצוות לא תעשה to not have mercy on a רודף, therefore the חכמים ruled that if a foetus is making it difficult to give birth its permissible to cut it up while still inside whether through medical or physical means since its a רודף, but the moment the foetus's head emerges you can't kill it since how can one life take the presence of the other, and this is the nature of the world.

There are a few points that the רמב"ם seems to be making;

The foetus is no longer considered a רודף once its head emerges (its unclear why).
It seems that its only מותר to kill the foetus because its a רודף, however if its not it should be אסור. This is helped by the fact that the רמב"ם seems to refer to the foetus as a נפש the entire time, even before it emerges, possibly meaning that there is some type of murder when killing the foetus.

R' Unterman quoted in נועם Volume 6 Pgs 1-11, אגרות משה חו"מ חלק ב סימנים סט-עא – Are מחמר based on this, and we need to be חושש that the foetus is a human being at the outset. However, they agreed its not classic רציחה, its a different אסור מדאורייתא which is an אבזרייהו (branch) of רציחה

חוות יאיר סימן לא and others – Disagree and understand that really the רמב"ם holds that a foetus is not a נפש and the reason he uses it here is only because its a good model for the rule of רודף, however רודף is only one reason why you can abort a foetus.

What is wrong with abortion, what is the אסור?

משך חכמה פרשת דברים כב:יט – One who causes abortion without a good reason is חייב מיתה בידי שמים.

It seems like the משך חכמה holds like R' Unterman and R' Feinstein that abortion is a type of רציחה.

:סנהדרין נז – Brings down a מחלוקת תנאים about whether בני נח is killed for killing foetuses (performing an abortion), according to the תנא קמא he isn't, while according to רבי ישמעאל he is based on the פסוק in בראשית ט:ו which states "שפך דם האדם באדם דמו ישפך", since an אדם inside an אדם is a foetus.

רמב"ם מלכים ט:ד – Holds like רבי ישמעאל.

If we hold that בן נח is חייב מיתת ב"ד for performing an abortion, shouldn't it also be אסור for a Jew?

R' Lichtenstein – All the reasons we said above could be the basis for the דרבנן (eg, if you kill a foetus you will get used to killing and kill a person). Alternatively, it could be the תורה is against this, however its only vague ethic without a particular אסור, and the רבנן crystallized it and gave it a definite אסור.

הלכה למעשה

If she is pregnant because of rape or adultery, if the pregnancy will exacerbate internal diseases which will her cause her to be unhealthy (however won't kill her) or will cause her to die early (ie, it will take years off her life), if the pregnancy will cause her psychiatric/mental problems, or if there are serious social or economic factors, the ציץ אליעזר is generally מקל while R' Moshe Feinstein and R' Unterman are generally מחמר, while R' Aharon Lichtenstein says it depends at what stage of development the foetus is in: if it could be taken out of the womb and survive he is מחמר, while if it won't he is מקל.

Stages of Development

Obviously development begins at conception.

Embryonic Period – The point in time when the major structures begin to form, generally starting 40 days after conception.

Fetal Period – The point in time when there is maturation of tissues and organs, generally starting 9 weeks after conception.

Viabilitiy – The point in time when the foetus would be able to survive outside the womb. In the time of the גמרא (about 500CE) a foetus sometimes wasn't even viable at 8 months, while nowadays due to technology the foetus is viable in 22 weeks or 5 and ½ months (and this time is due to shorten with further medical advancements).

:יבמות סט – Refers to the first 40 days of development as מי בעלמא (just water).

R' Unterman – Is מחמר even during the first 40 days since the גמרא and many ראשונים say that if she is found pregnant during the first 40 days and the embryo's health is threatened we can be מחלל שבת to help it.

R' Yosef Dov Soloveitchik – The reason why we are מחלל שבת is because it can keep other שבתות, and thats why we can מחלל שבת here (since there is the potential), however this doesn't mean that its אסור to perform abortion.

From after 40 days until the first trimester;

:משנה בכורות מז – Recognizes the first trimester.

יביע אומר חלק ד אה"ע סימן ח – Because of this in the first three months there is no אסור of abortion, even for a non-Jew.

Between 3 months and viability most פסוקים are much more מחמר about abortion.

ציץ אליעזר – Is מקל, possibly even up to 6-7 months. One example of this;
חלק ז סימן מח (?) – Its מותר to perform an abortion in a מקום צער מרובה and צריך גדול (this seems to include social and economic problems).

If the mother has a heart condition;

R' Chaim Ozer Grodzinsky – The foetus is a רודף.

If the mother will become sick;

ציץ אליעזר חלק ו סימן מח (?no such סימן?) – Its מותר to do an abortion.

Typically the protocol of פסק regarding abortion is if the woman feels there is great economic difficulty, etc, we try to abort during the first 40 days, however in a great need we abort even during the first trimester. Also, the best means of abortion is to use a drug if possible.

What about the רמב"ם, how do we explain him according to those who are מקל?

R' Chaim Soloveitchik on this רמב"ם;

שו"ע חו"מ תכה:ב – If you are in a boat and there is a donkey in a boat zipping by your boat and the donkey jumps into your boat and you are going to capsize if you don't get rid of the donkey, מדין רודף you can kill it.

Why is a donkey a רודף, it doesn't know what its doing? Since its not a full being you can use the דין of רודף to kill it. Therefore, a foetus isn't fully formed, so its like the donkey and you can apply the דין of רודף, however once it emerges its considered a fully formed being, so since its not its fault that its killing the mother you can no longer use רודף to kill it.

These are from my notes. If you see something that's incorrect, please let me know.
–
ShmuelJun 6 '14 at 5:58

1

The Zohar isn't really talking about abortion, it is talking about being boel on exactly 90 days after conception, which could be deadly for the fetus. Kal VeChomer for abortion, of course, but it is really pushing it to apply directly as this is the issue of abortion. It is more like an additional issue, over and above the standard one(s).
–
YishaiJun 6 '14 at 15:07

If you don't mind me asking, might it be possible to get an English/transliterated gloss of some of the Hebrew here? I liked this answer for its comprehensiveness, but as someone who just knows a handful of Hebrew words, I'm having trouble reading some of it.
–
KaramazovFeb 4 at 1:42